Wilbur v. Moulton

Morton J. This bill of exceptions, as we understand it, does not show that there was any erroneous ruling in matter of law at the trial. The question whether the plaintiff as mortgagee could maintain this action for the value of the turf removed from the mortgaged land is governed by the principles stated in Searle v. Sawyer, ante, 491. Upon this point, the instructions given by the court were not excepted to, and are not stated. It must, therefore, be assumed that they were correct; and that the jury found that Fowler, in severing the turf, acted without any express or implied license from the plaintiff, and was a trespasser. This being so, the plaintiff can recover the value of the turf from the defendant, if he converted it to his own use. The defendant does not argue in this court, that, under the circumstances of this case, the mortgagee cannot follow the turf and recover its value of Fowler; but he contends that he is not liable for the tortious acts of Fowler, because Fowler was not his servant, but turfed the yard of Rice under an independent contract. But this was a question of fact for the jury. The bill of exceptions does not show that Fowler was acting for himself as a contractee. It shows only that the defendant employed Fowler to turf the door-yard of Rice. It was for the jury to say, upon the evidence, whether he employed Fowler as a contractee or as his servant. It was competent for them to 511 find that Fowler was acting throughout as the servant of the defendant; and that the defendant was, therefore, responsible for his acts in taking the turf, and appropriating it to the defendant’s use. If so, such taking and use by Fowler was a conversion by the defendant, and he is liable for its value. JExceptions overruled.